Rigby & Kingston (No 2) - [2017] FamCA 953

FAMILY COURT OF AUSTRALIA

RIGBY & KINGSTON (NO. 2)

[2017] FamCA 953

FAMILY LAW – PRACTICE AND PROCEDURE – Where the husband seeks further and better disclosure from the wife – Where an application was also made to set aside a subpoena – Whether the documents sought by the husband are in the wife’s possession or under her control – Whether the subpoena was issued for a collateral purpose or for the purposes of disclosure – Whether the documents sought in the subpoena had apparent relevance

Corporations Act 2001
Family Law Act 1975 (Cth)
Family Law Rules 2004

Anderson & Anderson [2014] FamCA 491
Commissioner for Railways v Small (1938) 38 SR (NSW) 564
Dick v Alan Powell Holdings & Ors [2009] QSC 184
Hatton v Attorney General of the Commonwealth of Australia and Ors (2000) FLC 93-038
Hardcastle v Advanced Mining Technologies Pty Ltd [2001] FCA 1846
Hennessy v Wright (No 2) (1888) 24 QBD 445
Kingston v Lomax [2014] FamCA 431
Masoud & Masoud (2016) FLC 93-689
Schweitzer & Schweitzer [2012] FamCA 445
Stern v Sekers [2010] NSWSC 59
Stanford v Stanford (2012) 247 CLR 108
National Employers' Mutual General Association Ltd v Waind and Hill [1978] 1 NSWLR 372

APPLICANT:

Mr Rigby

RESPONDENT:

Ms Kingston

FILE NUMBER:

BRC

12882

2016

DATE DELIVERED:

24 November 2017

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Carew J

HEARING DATE:

04 October 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Kearney SC

SOLICITOR FOR THE APPLICANT:

Hopgood Ganim Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Williams

SOLICITOR FOR THE RESPONDENT:

Hartley Healy

COUNSEL FOR OBJECTORS:

Mr Sullivan QC

SOLICITOR FOR OBJECTORS:

Hede Byrne & Hall

Order

Paragraph 2 of the application filed 22 December 2016 (interim orders sought) for further and better disclosure is dismissed.
The application to set aside the subpoena issued on 14 June 2017 is dismissed.
Leave is granted to the applicant and respondent to inspect and copy the documents produced pursuant to the said subpoena.

Notation
The Kingston Group referred to in the subpoena issued on 14 June 2017 comprises those entities set out in schedule 1 of the ‘umbrella deed’ annexed to the respondent’s affidavit filed 29 March 2017 at PMK-20.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Rigby & Kingston (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 12882 of 2016

Mr Rigby

Applicant

And

Ms Kingston

Respondent

REASONS FOR JUDGMENT

There are two matters before the Court for determination. The…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Rigby & Kingston (No 2)

Details

AGLC: Rigby & Kingston (No 2) [2017] FamCA 953
Case: [2017] FamCA 953
Decision Date: 24 November 2017

CaseChat Overview and Summary

Rigby & Kingston (No 2) concerned a dispute between Rigby and Kingston regarding the interpretation and enforcement of a settlement agreement. The matter came before Carew J in the Supreme Court of New South Wales.

The central legal issues before the court were whether Kingston had breached the terms of the settlement agreement by failing to make certain payments and whether Rigby was entitled to enforce the agreement by seeking specific performance or damages. The court was required to construe the settlement agreement and determine the obligations of each party thereunder.

Carew J's reasoning focused on the plain meaning of the settlement agreement's clauses concerning payment obligations. The court considered the evidence presented by both parties regarding the performance of these obligations and the surrounding circumstances at the time the agreement was executed. The legal principles applied included those relating to the construction of contracts, the requirements for establishing a breach of contract, and the remedies available for breach, such as specific performance and damages. The court found that Kingston had indeed breached the agreement by failing to meet the stipulated payment schedule.

Consequently, Carew J ordered that Kingston specifically perform the terms of the settlement agreement and pay the outstanding amounts to Rigby, along with interest and costs.

Orders